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Personal Injury Case Studies

A personal injury accident can have major short-term and long-term consequences. If you’ve been injured and think other parties involved are at fault, don’t wait to take action and learn about your rights to fair compensation. Below are just some of the cases we’ve won for our clients.

Automobile Accident Personal Injury

Automobile Accidents

  • 950,000 settlement for an ex-NFL player involved in a car accident resulting in a closed head injury, concussion, PTSD, and anxiety.
  • $700,000 for a Roseville couple who were injured in a broadside collision where the wife suffered broken ribs and the husband a broken ankle.
  • $100,000 uninsured motorist policy limits settlement for a client was in rear-ended and underwent surgical neck and spinal fusion
  • $205,000 uninsured motorist policy limits settlement for a woman was in an auto accident where she sustained severe back strain and emotional distress.
  • $32,500 settlement for a 60-year-old woman who suffered whiplash injuries to her neck and back in a rear-end auto collision
  • $30,000 settlement for a 60-year-old woman who suffered whiplash injuries to her neck and back in a rear-end auto-collision.

Automobile vs Pedestrian Bicyclist Accidents

Automobile vs. Pedestrian/Bicyclist Accidents

  • $100,000 settlement of policy limits for an El Dorado County resident who was walking along the side of a road that did not have a sidewalk and was struck by a car that resulted in permanent damage to the central nervous system.
  • $15,571.34 jury verdict in favor of our client – a 22-year-old woman who suffered bruises and contusions to her left ankle after being struck by a slow-moving vehicle while walking on the sidewalk.

Slip And Fall Accidents

Premises Liability Action – Slip & Fall Accidents

  • $275,000 settlement for a 58-year-old woman who was injured by an improperly retained heavy door on a commercial boat that slammed on her ankle causing permanent injury and scarring.
  • $50,000 settlement for a 55-year-old woman who tripped over an exposed tree root at the home she was renting and suffered a dislocated wrist.

California Child Support 101

mother and child support

By: Trevor Hensley, Family Law Attorney

 

As a separating parent, it is only natural to be interested in more information about the process and rules behind California’s child support system.

From healthcare to education, food, rent and the myriad of other expenses relating to raising a child, you have any number of reasons to be worried about both their short-term and long-term future.

The courts have enumerated several child support guidelines which were specifically designed to help parents navigate the legal process and provide some expectations regarding what parents might be paying or receiving in terms of child support. With around half (48.7%) of the country’s estimated 13.4 million custodial single parents receiving some type of legal or informal child support, it is important that separating parents understand the basics of how child support actually works.

This post will briefly review some of the most frequently asked questions regarding child support in the state of California. Please note that as each child support case has its own special circumstances and your case is likely to have a unique set of facts that could significantly impact the amount of support due. The information below is meant to convey the general guidelines and is not meant as case-specific advice.

Let’s take a look:

1. What is the purpose of the child support law and how is it defined?

Section 4050 of the California Family Code, is the starting point to every child support order. Known to attorneys as defining the guidelines to determining child support, this statute has two primary purposes. The first is to provide children with a support amount that is sufficient to help the custodial parent maintain a close approximation to the standard of living enjoyed during the relationship, while the second is to allow for the consistent calculation of that support between applications to different cases to avoid favoritism or prejudice.

The term “child support” typically refers to court-ordered payments for the purpose of sustaining and maintaining a dependent child post-separation. A dependent child is an unemancipated person under the age of 18 who has not graduated from high school and is not;

  1. Self-supporting
  2. A member of the armed forces
  3. Married

As the number one interest of the state of California in these proceedings is child welfare, the general purpose of the regulations is to compel parents to provide monetary assistance, health insurance coverage, day care, and other services for their dependent minor(s).

Here are a few more important points to remember:

  • The support obligation is mutual, and based on a multi-part formula
  • California is an expensive state to live in, and support orders typically reflect this
  • The support guidelines are designed to avoid prolonged conflict and reduce litigation

2. How does a parent request child support?

Although there are multiple ways in which parents can initiate a child support action, they typically begin with either:

  1. A related foundational filing (motion); or
  2. A California Department of Child Support Services action (via a local child support agency).

Proceedings that do not involve the latter agency most often begin with a related Petition, such as a petition for divorce, a paternity/custody petition, or an application for a domestic violence restraining order. To initiate proceedings, the petitioning parent must complete the following steps:

  1. Fill out any forms that are required (including a form FL-300 support request)
  2. Have the forms reviewed by an experienced family law attorney
  3. Make at least two copies of the forms
  4. File the forms with a court clerk and get a hearing date
  5. Use a constable service or third-party to serve the copies of the filings on the other parent (typically, at least 16 days prior to the court date)
  6. File proof of this service with the court
  7. Attend the court hearing

On the date of the hearing, the assigned judge will evaluate the facts of the case, listen to testimony under oath from both parties, and sign an order based on the circumstances of the case.

If there are separate disputes regarding parenting time, income, or other issues that could potentially impact support, the court will hear those issues as well. It is important to note that although the steps listed above are standard procedure for when a parent would like to adjudicate a support petition in court, it is not always necessary to do so in order to obtain child support. Many parents come to an agreement through a mediation process, allowing parents to draft their own agreement, sign it, and take it to a judge for review. If the judge signs it, the agreement becomes an official court order.

3. How is child support calculated?

California Child Support Calculator

 

Although the guideline itself uses a complex formula involving income, tax deductions, and “time spent parenting” (among other inputs), California also has an online child support calculator to assist parents in reaching a specific dollar amount more easily. The first step in calculating child support is to be organized, as the calculator will only provide an accurate number if parents provide each other with precise and up-to-date information. This information is typically provided in the form of an Income and Expense declaration, or FL-150. Each parent must determine, if applicable, the following inputs before an accurate amount for child support can be calculated:

  • The percentage of time spent with the child
  • Gross income
  • Any available tax deductions (i.e., mortgage interest)
  • Mandatory payroll deductions (i.e., health insurance)
  • Child care costs (as allocated to each parent)

The resulting support number is called a “guideline amount,” and acts as a baseline for the court’s order of support. This baseline order is not the end of our inquiry, however, as the parties may have other recurring costs related to the child that should be considered. This means that parents could, in theory, be ordered to pay each other additional child support inthe form of add-ons.

California Family Code Section 4062 lists two types of childcare add-ons: mandatory and discretionary.
A judge must order additional, mandatory child support add-ons for;

  1. Child care costs related to employment (or for reasonably necessary education/training for employment skills)
  2. For the reasonable uninsured health care costs of a child.

A judge can also order discretionary add-ons for;

  1. Costs related to the educational/other special needs of a child
  2. Travel expenses for visitation.

It is important to note that although add-ons are to be shared equally by parents, the court is authorized to allocate them based on each parent’s net spendable income should equal apportionment be deemed unreasonable.

4. Can child support orders be changed?

California law does allow for the modification of child support orders in certain circumstances. Modification may be justified by changes in the income of the custodial or non-custodial parent.  Some common examples of this change may be the following:

  • Unemployment
  • Illness, injury, or disability
  • A state-to-state or country-to-country move
  • The birth of a new child
  • Criminal conviction or jail sentence

If any of the above arise, however, a parent cannot simply stop making their court-ordered payments, but must formally file a request for a modification of the previously issued support order. It is absolutely imperative that you ask the court, as soon as possible, for a modification to the support order following a change in circumstance. Each day that passes is another day that support is paid pursuant to the wrong numbers. Modifications to the order will be effective on the day that the motion is filed, not the day of the hearing.

Once a court reviews a modification request, the same factors that were reviewed for the original order will be considered and, if a significant change has occurred, support will be recalculated If a change in circumstance cannot be demonstrated then the request is likely to be denied.

In Sum…

While this post has covered some basic, and common points on California child support law and its governing body of regulations, it is by no means exhaustive. Parents looking to efficiently and amicably handle a request for child support should enlist the assistance of an experienced attorney from a reputable firm.

For more information on how our legal team can help, don’t hesitate to contact our offices to schedule an appointment.

Michael Cohen Case Highlights Attorney-Client Privilege Issues

Michael-Cohen-legal-team

By Anthony P. Fritz, Esq.

The FBI raid on Michael Cohen’s office, home and hotel room in April 2018, and the seizure of business records, e-mails, audio tape records and other materials brought the issue of attorney-client privilege into national focus. Most people know that Mr. Cohen was one of Donald Trump’s longtime personal attorneys and that Cohen arranged a non-disclosure agreement with Trump and Stephanie Clifford, aka Stormy Daniels, in November 2016. Mr. Cohen also represented Elliott Broidy, former RNC deputy finance chairman, in a similar arrangement with a former Playboy model.  Cohen’s third client, Sean Hannity, stated publicly that Mr. Cohen did little or no legal work for him.

In order to obtain search warrants, the FBI had to show probable cause that a crime was committed and that items connected to the crime are likely to be found in the places specified by the warrants. It remains to be seen whether Cohen might face criminal charges, or whether any of his three clients might be implicated in any of Cohen’s possible criminal activities.

The FBI seized materials that included communications between Mr. Cohen and Mr. Trump, and others. After the records were seized, Cohen’s attorneys appeared before Kimba Wood, Federal Judge in the Southern District of New York, and argued that they should have the right to review the materials and redact or withhold any information they believe is protected by the attorney-client privilege before Federal law enforcement officials could review any of the seized materials.

Instead, Judge Wood appointed a Special Master to review the seized materials and render decisions regarding privilege issues. Judge Wood gave Cohen and his attorneys the right to identify the information that they claim is privileged and therefore protected from disclosure. The Special Master is entitled to confer with the Government on privilege issues without disclosing information that Cohen claims to be privileged. The Special Master is required to issue a report of her privilege determinations to the Court, giving the parties the right to object to the determinations, with the Court making the final decision as to any information that is privileged and therefore cannot be reviewed by Federal prosecutors.  Judge Wood specifically directed the parties to focus on the “crime/fraud” exception to the attorney-client privilege in assessing privilege issues.

The Court’s determination of privilege issues will undoubtedly have a major impact on Mr. Cohen’s future, and could very well affect the Trump presidency, and the future of our nation.

Attorney-client communication and work-product privileges are frequently raised in litigation, and it is important to understand how these privileges operate in practice. Michael Cohen’s privilege claims will be determined under New York law, but we believe that an understanding of the application of attorney-client privileges under California law will help our readers understand how those principles will likely be applied in Mr. Cohen’s case.

Guiding Principles:

Attorney-Client privilege applies to a communication made in confidence in the course of the lawyer-client relationship. Evid. Code section 917. A lawyer-client relationship begins when a person consults an attorney for legal advice. The client is the holder of the privilege and can prevent another from disclosing a confidential communication between the client and lawyer. Evid. Code section 954. The lawyer who received or made a communication subject to the privilege shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under Evidence Code section 954(c). Evid. Code section 955.

The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years. The privilege authorizes a client to refuse to disclose and to prevent others from disclosing, confidential communications between attorney and client. The fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. The public policy fostered by the privilege seeks to ensure “the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.”

Although exercise of the privilege may result in the suppression of relevant evidence, the Legislature has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. “The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.” Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601.

Scope of the Privilege

The attorney-client privilege includes oral and written statements, actions, signs and other means of communicating information to the client. The privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. The actual fact of the transmission to the client merits protection since discovery of the transmission by an attorney of specific public documents to the client might very well reveal the transmitter-attorney’s intended strategy. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601.

Attorney Work-Product Privilege

“The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and anything in writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” Civil Procedure section 2018.030.   

The effect of section 2018.030 is to create two privileges: “a qualified privilege against discovery of a general work product and an absolute privilege against disclosure of documents containing the attorney’s `impressions, conclusions, opinions, or legal research or theories.” American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. App.3d 579, 594.  The attorney is the holder of work-product protection and has the right to assert the privilege.

Prima Facie Privilege Claim

The party claiming the privilege must establish the preliminary facts essential to the claim, namely, that the communication was made in the course of an attorney-client relationship. When that showing has been made, then the communication is presumed to have been made in confidence, and the opponent has the burden of proof to establish that the communication was not confidential, that an exception applies or a waiver occurred. Evid. Code section 917,  Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123-24.

No Attorney Work-Product Privilege: Attorney acting solely as a client’s business agent/negotiator

Where the attorney acts merely as a business agent for the client in conveying the client’s position to a contracting party, there is no justification for protecting the attorney’s notes concerning the conversation. However, in doubtful cases or those in which the legal work and work performed as an agent are inextricably intertwined, the privilege will be sustained.  Watt Industries, Inc. v. Superior Court (1981) 115 Cal.App.3d 803.  Similarly, there is no attorney work-product privilege where the attorney merely gave business advice to the client.  Estate of Perkins 195 Cal. 699, 710.   The work-product privilege applies to documents related to legal work an attorney performs for a client, not to notes memorializing acts an attorney performs as a mere agent.

No Attorney-Client Privilege: The Crime/Fraud Exception

The attorney-client privilege does not exist if the client sought or obtained the attorney’s services to enable or aid anyone to commit or plan to commit a crime or fraud. Evid. Code section 956; BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262–1270.  The issue is whether the services of the firm were used to enable the client to commit a crime or fraud and whether there is a reasonable relationship between the crime or fraud and the attorney-client communication.  State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal.App.4th 625, 645.  The lawyer does not have to be aware of the fraud for the crime-fraud exception to apply. Instead, “it is the intent of the client upon which attention must be focused and not that of the lawyers.” Id.  

In State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal.App.4th 625, the Court held that that evidence that an insurance company, aided by its attorneys, instructed its employees to forge signatures, lie, and destroy documents related to the handling of certain earthquake insurance claims was sufficient to support a prima facie case establishing the crime/fraud exception to the attorney-client privilege.   

A prima facie case for the crime/fraud exception is made where the proponent of the exception demonstrates sufficient evidence to show that the fraud or crime has some foundation in fact. State Comp. Ins. Fund  v. Superior Court (2001) 91 Cal.App.4th 1080, 1090-1091. However, mere issuance of a search warrant to seize files from an attorney’s office does not, in itself rise to the level of a prima facie showing to establish the crime/fraud exception. Geilim v. Superior Court (1991) 234 Cal. App. 3d 166.     

Work product or communications between Michael Cohen and his clients made in furtherance of a crime or fraud perpetrated by one of Cohen’s clients would not be subject to the attorney-client privilege, and would, therefore, be subject to disclosure to Federal prosecutors.  

Michael Cohen had a long-standing close professional relationship as Donald Trump’s attorney, and Cohen used his access to Trump secure several lucrative “consulting contracts” with companies such as Time/Warner and Novartis.  Cohen had separate business interests outside of his law practice and at this point, we do not know whether the FBI search warrants were based on suspected criminal activity involving Cohen’s law practice and clients, or business activities unrelated to Cohen’s law practice.  The FBI raid made headlines, but at this point, it would be pure speculation to conclude that it had anything to do with possible criminal activity involving the President.

Procedure to Establish Privilege: In Camera Review

California’s discovery statutes enable a party to obtain relevant documents and electronically stored information in an adverse party’s possession, custody or control.  The party responding to a request for production may withhold documents and other information claimed to be privileged but must provide sufficient factual information for other parties to evaluate the merits of the privilege claim. Code of Civ. Proc. Section 2031.240.  A person questioned under oath is entitled to refuse to answer if the question requires the disclosure of information protected by the attorney-client privilege.   

Where a dispute over privilege issues arise during litigation, the parties are required to first meet and confer and attempt to resolve the dispute.   If the dispute cannot be resolved voluntarily through negotiation, the requesting party may file a motion with the Court to compel the other party to disclose or produce the disputed documents or other information.

Where a dispute concerning the attorney-client privilege arises in litigation, the court may conduct in-chambers review of the materials allegedly subject to the privilege and determine whether the privilege applies and whether the documents or other information should be provided to the requesting party.

In United States v. Zolin (1989) 491 U.S. 554, the United States Supreme Court addressed the issue of disclosure of privileged materials under the federal rules of evidence. The IRS sought to obtain two tapes of a church, which were held under seal in the custody of the California state court clerk. The IRS argued that the tapes fell within the crime/fraud exception to the attorney-client privilege claimed by the church.  The Supreme Court held that the material should be provided to the trial court for in-camera review and that disclosure to the court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege.

Waiver of the Attorney-Client Privilege

The attorney-client privilege “is waived if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” Evid. Code section 912(a).  The attorney-client and work-product privileges can be waived by: 1) failing to assert the protection; 2) tendering certain issues; or 3) by conduct inconsistent with claiming the protection. BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1254, 1261.  

Work-product protection “is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation.” Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, 689.  Mere disclosure in deposition of the fact that a communication between client and attorney had occurred does not amount to disclosure of the specific content of that communication, and as such does not necessarily constitute a waiver of the privilege. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601-602. The attorney-client privilege is not waived by sharing documents during contract negotiations where the disclosure of documents was reasonably necessary to further the interests of both parties in finalizing negotiations. STI Outdoor v. Superior Court (2001) 91 Cal.App.4th 334, 341.

Implied Waiver – The “In Issue” Doctrine:  There is an implied waiver of the privilege when the client tenders an issue involving the substance or content of a protected communication. Implied waiver is limited to situations where the client has placed into issue the decisions, conclusions, and mental state of the attorney who will be called as a witness to prove such matters.  A client’s deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice. Mitchell v. Superior Court (1984) 37 Cal.3d 591, 606.

Conclusion:  Judge Wood appears to have instituted procedures to enable Federal prosecutors to complete their investigation while protecting the legitimate privilege and privacy interests of Mr. Cohen and his clients.  

The rest of us should keep in mind certain principles concerning the nature and scope of the attorney-client privileges in business dealings and in litigation.  First, merely hiring an attorney to represent you in business negotiations will not necessarily guarantee that your communications with your attorney will be privileged.   Second, communications with an attorney made in furtherance of a fraudulent or criminal scheme will not be protected from disclosure. Third, attorneys and their clients should exercise caution in sharing their communications with third parties.  Unnecessary or gratuitous disclosure of communications between an attorney and his or her client can be deemed a waiver of the privilege under certain circumstances. Finally, where a party in litigation refuses to provide documents or testimony based on the attorney-client privilege, a judge may be the final arbiter of the dispute if the parties are unable to resolve it by agreement.         

A Late Certificate of Merit In Professional Negligence Matters Could Cost You Your Case

construction site crane

By Lindsay L. Volle, Attorney

A recent California case, Curtis Eng’g Corp. v. Superior Court, 16 Cal. App. 5th 542 (Cal. Ct. App. 2017), has provided important instructions to plaintiffs and their attorneys who are filing a professional negligence lawsuit.

Certificate of Merit Requirement

In California, a plaintiff who intends to file a professional negligence lawsuit against an architect, engineer, or land surveyor, must comply with the certificate of merit requirement found in California Code of Civil Procedure, section 411.35.

The certificate of merit is prepared by a plaintiff’s attorney and declares that the attorney has consulted with an expert in the same discipline as the defendant or defendants, and the expert has concluded that the plaintiff’s case for negligence has merit. The attorney must file and serve the certificate of merit on or before the date of service of the complaint.  (CCP Section 411.35 (b)(1).)

However, because these professional negligence actions only have a 2-year statute of limitations, California Code of Civil Procedure, section 411.35 (b)(2), provides a 60-day grace period to file the Certificate of Merit. If plaintiff’s attorney cannot obtain the consultation before the statute of limitations expires, the attorney can file the complaint to preserve the statute of limitations, and file the certificate of merit within 60 days after filing the complaint. (CCP Section 411.35 (b)(2).)

California Code of Civil Procedure section 411.35(b)(3) also provides that if the certificate of merit is somehow unavailable prior to filing the complaint, the attorney is required to submit a declaration that provides an adequate excuse for not obtaining the certificate. With regard to the excuse provision, the notes of decisions provided that the following was an acceptable excuse for purposes of section 411.35(b)(3): “the attorney had made three separate good faith attempts with three separate architects, professional engineers, or land surveyors to obtain this consultation and none of those contacted would agree to the consultation.”

Curtis Eng’g Corp. v. Superior Court

On May 5, 2014, the Plaintiff, in this case, was injured in a crane accident, and on May 3, 2016 – on the eve of the two-year statute of limitations – he sued Curtis Engineering for professional negligence. The Plaintiff did not include a certificate of merit pursuant to section 411.35 of the California Code of Civil Procedure.

On December 1, 2016, Plaintiff filed an amended complaint, which attached a certificate of merit. Curtis Engineering demurred to the amended complaint; arguing that the Plaintiff had failed to file the required certificate of merit within the two-year statute of limitations period applicable to a negligence cause of action. The trial court sided with Plaintiff, and overruled Curtis Engineering’s demurrer.

Curtis Engineering appealed, arguing that the certificate of merit was filed nearly seven months after the expiration of the statute of limitations, and was outside of the 60 day grace period allowed by California Code of Civil Procedure, Section 411.35 (b)(2).

In response, the Plaintiff argued that the certificate of merit should be treated as though it was filed on May 3, 2016 because of the “Relation-Back Doctrine”. Generally, the “Relation-Back Doctrine” provides that a later-filed pleading can “relate back” to the date of an earlier-filed pleading for statute of limitations purposes.

The appellate court ruled that the plain language of section 411.35 does not allow application of the relation-back doctrine, and applying the relation-back doctrine in this context would render meaningless the statutory requirement that the certificate be filed “on or before the date of service.” The Defendant’s demurrer had to be sustained without leave to amend because the Plaintiff did not file the required certificate of merit within the 60-day period set forth in section 411.35(b)(2) or the statute of limitations period. There was simply no way for Plaintiff to cure this defect. In other words, Plaintiff’s action was thrown out – the certificate of merit was too late and the statute of limitations had already expired.

The court of appeal further explained that section 411.35(b)(2) provides for an exception that allows the filing of the required certificate “within 60 days after filing the complaint,” only where the party files an excuse certificate stating he or she could not obtain the required consultation before the statute of limitations impaired his action.

The Plaintiff, in this case, did not file an excuse certificate, but even if he had, the 60-day period for filing such a certificate and the statute of limitations on the Plaintiff’s cause of action for negligence ran well before Plaintiff filed the certificate.

These findings from the court make it all the more important that you seek legal guidance in cases for professional negligence. Something as simple as being too late to file your certificate of merit could derail your entire case before you even get started.

If you have any questions about professional negligence, certificates of merits, or how any of the California Codes of Civil Procedure may apply to your case, please reach out to our experienced team of attorneys.

Protect Your ‘Kingdom’ With A Prenup

Prince Harry And Meghan Markle
Image Credit: By Mark Jones, via Wikimedia Commons

 

By Trevor L. Hensley, Family Law Attorney

Prince Harry is set to marry Meghan Markle this weekend. Every detail, from the flowers to the bridal party, was likely the result of painstaking effort and planning. These details are important, but it would be interesting to know whether or not other (less public) details have been ironed out in these few days leading up to the wedding.

Prince Harry’s net worth is estimated to be between $25 and $40 million, a far cry from the most generous estimates of Ms. Markle’s net worth as an actress. Prince Harry may not be concerned that he is being married for his money; however, if he wasn’t British Royalty, he probably would have sought counsel regarding whether he needed protection in the event of a divorce.

Whether you’re a millionaire prince, a famous actress, just starting out in life, or anything in between – getting advice about the ramifications of divorce and making a plan could save your “kingdom”.

In California, prenuptial agreements, or “prenups,” are enforceable agreements you make with your future spouse to provide guidance in the event of a divorce. The agreements you reach in your prenup will take the place of family law general rules, rules which you may or may not agree with. Rules concerning the amount and duration of spousal support and the acquisition of property are some of the most common examples of topics covered in a prenup.

For example, property acquired during marriage is presumed to be community property and is subject to equal division. Furthermore, paying the mortgage on a separate residence (one you acquired before the marriage) during the marriage could result in the community (your new spouse) acquiring an interest in that property. These could be unexpected consequences of sharing your life with your new spouse, consequences you might like to avoid.

One of the most common factors in a prenup concerns spousal support. The rules regarding spousal support are found in California Family Code section 4320. This code section essentially states that if the marriage is more than 10 years in duration, spousal support could last indefinitely. Unsurprisingly, the word “indefinitely” scares most people.  A properly drafted prenup could limit your exposure to high spousal support for an unlimited period of time. The agreement could specify the amount of support and the duration for which it will be paid.

That being said, prenuptial agreements aren’t for everyone. The California Family Code is based on equity (fairness). Why shouldn’t a spouse acquire an interest in their new-spouse’s property if that spouse is paying the new-spouse’s mortgage? Why shouldn’t a spouse who stays at home and raises the children be able to receive support while they find employment? These questions are important and should be answered before pursuing a prenuptial agreement.

Prenuptial agreements can also be unenforceable if:

  • The party did not execute it voluntarily
  • The agreement was unconscionable when it was executed

The agreement must be fair and must be based on what was known to the parties at the time it was executed. It is best to consult with an attorney regarding what is fair in your circumstances and to get help wording the agreement so as to avoid unconscionability at time of enforcement.

Finally, the cost associated with their creation and the potentially negative effect that a prenup could have on your relationship might outweigh the benefits of having one.

Regardless, having an open and honest conversation with your future prince or princess may enable you to reach agreements that will help mitigate anger and frustration should divorce, unfortunately, occur in the future.

Spousal Support In California

Spousal Support Negotiations

By Trevor L. Hensley

Spousal support can be a nuisance or a godsend, depending on whether you are the payer or the recipient. People’s feelings regarding the issue of spousal support have spawned thousands of cases and hundreds of legal statutes. Each case and statute explains or modifies the rules regarding the payment of spousal support.

If you’re reading this blog then you probably have feelings of your own regarding this issue. If you believe that something is unfair regarding how much you are paying or being paid, your feelings may be correct. There may be a case or a statute out there which supports your feelings, so you shouldn’t be too quick to write them off.

I hope this blog helps to de-mystify the issue of spousal support, breaking down the core concepts into manageable parts so you can apply the facts of your situation to the vast history of spousal support orders in California. There could be a change warranted, whether it’s regarding the amount or the duration of spousal support.

What Is The Purpose Of Spousal Support?

The primary purpose of spousal support is to enable the requesting party to become self-supporting and to provide a means by which they could come close to affording the standard of living that they had grown accustomed to during the marriage. At the same time, they must figure out how to provide that standard of living for themselves. There is an inherent tension in spousal support cases because one party wants support to end while the other wants it to continue. These opposing goals can make spousal support cases some of the most complicated cases in the Family Law arena. This places a premium on being knowledgeable at the beginning of the case so you can get what you want by the end of the case.

There are hundreds of cases and statutes out there regarding the issue of spousal support, but a good starting place is Family Code section 4320. This statute explains the two core concepts of spousal support: amount and duration. This blog will be focusing on duration, which is the amount of time that a person is required to pay, or has the right to receive, spousal support.

Spousal Support Duration

Duration is dictated by Family Code section 4320(i). This section clearly indicates that the goal of spousal support is to enable the supported party to become self-supporting. This is an interesting concept, as it encourages the payer to provide the supported party with the resources they need to become self-supporting. Helping your now ex-spouse find a job and providing them with resources and encouragement will help them earn more in the long run and achieve financial freedom sooner.

Section 4320(i) goes one step further and tells the supported spouse that they must become self-supporting and that they have a “reasonable period of time” to do so. This “reasonable” period is defined in short-term marriages but left open in long-term marriages. Short-term marriages are, generally, marriages of less than 10 years. Long-term marriages are, generally, marriages that have lasted for more than 10 years. I say “generally” because the closer you get to the 10 year cutoff the more likely it is that the court will consider a longer duration in spousal support.

In short-term marriages, a reasonable period of time is generally half the length of the marriage. This means that, in the case of a 4-year marriage, a supported spouse could request and receive spousal support for another 2 years after the date of separation. It is important to note, however, that the court still has discretion in ordering spousal support to continue for more than that period of time. Circumstances like disability or a depressed job market might persuade the court to decide that “reasonable” means more than half the length of the marriage. This is often a difficult argument, however, and requires that significant facts be presented.

In long-term marriages, duration can be a little more difficult to determine. It is important that the payer and the payee understand that for the vast majority of our culture’s existence, one spouse (usually the male) was the breadwinner and the other spouse (usually the female) was the homemaker and child-raiser.  Women were often left with fewer job-skills and thus no way to support themselves after they left the household. Spousal support is there to ensure that the payee has some support while they try to obtain those job-skills through education/internships and as they try to re-enter the job market.

It can take a long time for someone who has been out of the job market for 10 years or more to become self-sufficient. The time it should take to become self-supporting is largely analyzed on a case by case basis, making a set timeframe for termination impracticable. It is dependent upon you and your attorney to present the judge with as much information as possible about why the duration of support should be longer or shorter. It is particularly important in cases of long-term marriages that you retain an attorney to help you with minimizing or maximizing the amount of time that spousal support will be paid. This can be accomplished by presenting the judge with as much relevant information as possible regarding the position you intend to take.

Duration can mean a great deal to a divorcing couple but sometimes the amount being paid can be even more significant.

Clifford v Trump

Trump VS Clifford

Non-Disclosure, Rescission, Agency, and Third Party Beneficiary Law in the News

By Anthony P. Fritz, Attorney at Law

Background

President Donald J. Trump’s alleged tryst with an adult film star has become sensationalized tabloid media fodder across America. Regardless of its political implications or entertainment value, the Clifford v. Trump litigation raises several interesting legal issues concerning contract interpretation and enforcement.

Media reports state that in 2006 Mr. Trump had an extramarital affair with a woman named Stephanie Clifford, who goes by the stage name “Stormy Daniels”.   It has been reported that shortly before the 2016 presidential election, Mr. Trump learned that Ms. Daniels was about to go public with details of their alleged carnal dalliance, and his attorney took certain steps to prevent that from happening.

On October 28, 2016 Ms. Clifford, under the pseudonym “Peggy Peterson”, signed a document titled “Confidential Settlement Agreement and Mutual Release; Assignment of Copyright and Non-Disparagement Agreement”.  The other parties referenced in the agreement were “Essential Consultants, LLC”, a newly formed Delaware limited liability company, and “David Dennison”, a pseudonym for the soon-to-be-elected President of the United States.

The Confidential Settlement Agreement provides that, in exchange for $130,000, Ms. Clifford/Peterson shall assign and deliver to Trump/Dennison all “physical and intellectual property rights” pertaining to her relationship with Trump, including photographs, negatives, letters, films, tapes, CD-Roms, DVD-Roms, magnetic data  and electronic data.  She further agreed to not disparage Mr. Trump in any way, shape or form, directly or indirectly, and to not disclose to any person any information pertaining to her intimate encounters with Mr. Trump.  The settlement agreement provides that Ms. Clifford will be obligated to pay Trump all money and other consideration she derives from her disclosure of any confidential information, and she will owe Trump $1 million for each separate violation of the agreement.

Michael Cohen, Donald Trump’s longtime personal attorney, negotiated the settlement agreement and he signed it on behalf of Essential Consultants, LLC.  Donald Trump did not sign the settlement agreement, and no signature appears on Mr. Dennison/Trump’s signature line in the agreement.

Ms. Clifford received her $130,000 on October 27, 2016, and Donald Trump was elected President shortly thereafter. That should have been the end of the story, except that in January 2018, rumors about the alleged affair and efforts to keep it secret began to surface in various media reports.  Michael Cohen came forward, publicly stating that he used funds from his home equity line of credit to pay Ms. Clifford the $130,000 and he was never “directly or indirectly” reimbursed for the expenditure, and his payment to Clifford had nothing to do with Trump’s election campaign.

In February 2018 Mr. Cohen obtained an ex parte restraining order to prevent Ms. Clifford from going public with her story.  Clifford responded by scheduling an interview with 60 Minutes.  Her attorney, Michael Avenatti, publicly offered to return the $130,000 Ms. Clifford received when she signed the agreement. There is nothing to suggest that the offer was accepted.

On March 6 Stephanie Clifford and her attorney filed a complaint for declaratory relief with the Los Angeles Superior Court naming Donald Trump and Essential Consultants, LLC as defendants.   Clifford’s complaint in Stephanie Clifford v. Donald J. Trump et al, LA Superior Court Case No. BC696568 alleges that the so-called “Hush Agreement” is “null, void and of no consequence” because it was never signed by Mr. Trump, Trump had no knowledge of the agreement and he did not pay any consideration for it, thus Mr. Trump “never assented to the duties, obligations, and conditions” therein.  Ms. Clifford’s complaint further claims that Mr. Cohen’s public disclosures about the settlement agreement violated its confidentiality provisions thereby nullifying it, and the agreement itself is unconscionable, illegal and violates public policy.

On March 16 Mr. Trump joined Essential Consultants’ petition to remove the Clifford v. Trump lawsuit from L.A. Superior Court to the U.S. District Court, Central District of California.   The removal petition states that Essential Consultants intends to seek private arbitration of the dispute and that Ms. Clifford owes President Trump $20 million based on 20 separate violations of the settlement agreement she allegedly committed as of March 16.

The controversy has spurred much public debate among various legal experts.  We offer our analysis of certain legal issues presented in the Clifford v. Trump lawsuit under California law.

Legal Issues

Non-Disclosure Provisions are often included in settlement agreements, particularly in highly contested litigation.  There is nothing intrinsically nefarious or sinister about a non-disclosure agreement. Disagreements between parties to a business transaction often lead to highly contentious and acrimonious litigation.  Most lawsuits settle before trial, with one party agreeing to pay money to the other in order to resolve the dispute.  A settlement agreement often includes non-disclosure provisions to prevent the recipient of settlement funds from harming the paying party’s reputation by proclaiming their victory to the world through the internet and social media.

Rescission

A party may cancel and rescind a contract where his or her consent to the contract was given by mistake, or obtained through duress, menace, fraud, or undue influence, where the consideration for the contract fails due to the fault of the other party, where the contract is unlawful or if the public interest will be prejudiced by permitting the contract to stand.[1]  Rescission extinguishes the contract, terminates further liability on the agreement, and restores the parties to their former positions. To effect a rescission, a party must restore or offer to restore everything of value he or she received under the contract.[2]  Ms. Clifford’s attorney offered to return the $130,000 she received under the settlement agreement to support her claim for rescission of the agreement.

There does not appear to be a basis for Ms. Clifford to rescind the settlement agreement based on mistake, duress, menace, fraud, or undue influence based on the information that is presently publicly available.  It is questionable whether the settlement agreement can be rescinded based on Mr. Cohen’s public communications about the agreement.   Clifford’s best argument may be that the settlement agreement, and its confidentiality provisions, should be rescinded because disclosure of the details of her alleged intimate relationship with the President is in the public interest.

Agency

Ms. Clifford’s complaint alleges that Donald Trump is not entitled to enforce the settlement agreement because he never signed it and he did not know about the agreement when it was negotiated and signed by his attorney in October 2016.   However, Trump may be considered a party to the settlement agreement according to agency principles under California law.

Michael Cohen was Donald Trump’s attorney representing Trump as his agent in negotiating and signing the settlement agreement.  An agent represents a principal in dealings with third persons. Such representation is called “agency”.[3]  An agent can bind his principal to a contractual agreement when acting within the scope of his or her agency relationship.  An agency is either actual or ostensible.[4] An agency is “actual” when the agent is really employed by the principal.[5] An agency is “ostensible” when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.[6]  An agency may be created, and an authority may be conferred, by a precedent authorization or a subsequent ratification.[7] An attorney is an agent of his client, and the attorney-client relationship is governed by the rules applicable to the relationship of principal and agent in general.[8]

Both principal and agent are deemed to have notice of whatever either have notice of and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other. [9]   An attorney practicing law in California or New York is ethically required to advise his or her client of a settlement offer or a settlement agreement affecting the client’s rights and duties.[10]  Under agency principles, Michael Cohen’s knowledge of the settlement agreement may be imputed to Trump, regardless of whether Mr. Trump had actual knowledge of the settlement agreement and its terms when it was signed.

Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.[11]  Ratification may be inferred from a purported principal’s conduct which demonstrates an intent to adopt an act as its own, including acceptance of benefits.[12]  A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.[13]  Trump ratified the settlement agreement by accepting its benefits and seeking to enforce it.

Donald Trump is bound by and he benefitted from Michael Cohen acts and agreements while acting within the scope of his authority as Trump’s agent and attorney.  Under California agency principles, Trump would very likely be entitled to enforce the settlement agreement even though he did not sign it, and even if he did not know about the agreement when it was negotiated and signed by Mr. Cohen in October 2016.

Third Party Beneficiary

Donald Trump may also be entitled to enforce the settlement agreement as a third party beneficiary under California law.  The Confidential Settlement Agreement states that it is entered by and between “EC LLC and/or DAVID DENNISON (DD), on the one part, and PEGGY PETERSON (PP), on the other part…”  The “and/or” in the Agreement is significant.  Donald Trump may not actually be a party to the settlement agreement, but he should have the right to enforce its terms as a third party beneficiary of the agreement.

A person who is not a party to a contract may be entitled to damages for breach of contract if he or she can prove that the parties to the contract intended for that person to benefit from the contract.  A third party may qualify as a beneficiary under a contract where the contracting parties intended to benefit that individual and the intent appears from the terms of the agreement.[14] The intent to make Trump a beneficiary of the settlement agreement is apparent from its terms.  Therefore, the absence of Trump’s signature on or knowledge of the settlement agreement would not likely be an impediment to his right to enforce it under California law.

Conclusion

Stephanie Clifford’s arguments for rescission of the Confidential Settlement Agreement appear to be on shaky legal ground if the dispute is decided according to California legal principles. She undoubtedly stands to make a great deal more than $130,000 by sharing her tales of adulterous intimacy with the world, but Ms. Clifford is very much at risk of having to pay all of the proceeds, and possibly much more, to her former inamorato.  Donald Trump is no stranger to legal controversy, and he and his attorneys have good reasons to seek private arbitration of the dispute rather than a high profile legal battle before a potentially hostile Los Angeles jury.

Stay tuned.

1 Civil Code § 1689(b)
Civil Code § 1691
Civil Code § 2295
Civil Code § 2298
Civil Code § 2299
Civil Code § 2300
Civil Code § 2307
Moving Picture, etc., Union v. Glasgow Theaters, Inc., (1970) 6 Cal.App.3d 395, 403.
Civil Code § 2332
10 Clifford’s complaint points out that Mr. Cohen would have violated his ethical duties as Donald Trump’s attorney if he did not tell Trump about the settlement agreement when he negotiated and signed it.

11 Rakestraw v. Rodrigues, (1972) 8 Cal.3d 67, 73
12 Ibid.
13 Civil Code §1589
14 Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 558.

Contested vs Uncontested Divorce: What’s the Difference?

A contested vs uncontested divorce is often classified by attorneys and the courts.

What determines whether a divorce is contested or uncontested is how well you and your spouse can negotiate your differences. But before we explore the differences between these two types of divorce further, there are a few other terms you should know.

Divorce Terms

As with any legal matter, there are certain terms of art, words, and phrases that have special meanings. Those meanings, while understood by lawyers and the courts, can sometimes be confusing for everyone else. Here are some of the terms you may encounter if you decide to file for divorce.

No-fault. This means that neither party to the marriage is legally blamed or penalized for causing the dissolution. The court doesn’t need to hear about anyone’s cheatin’ heart. A spouse’s behavior may be a factor in some decisions such as debt distribution or child custody, but it isn’t a factor in deciding whether the divorce may be granted.

Irreconcilable Difference. In a throwback to a time when a complainant had to declare a reason for wanting a divorce, most divorce pleadings today still require the person filing to indicate why they think the divorce should be granted. Each no-fault divorce state has its own statutory language that individuals must use when stating their reason.

Summary Dissolution. A summary dissolution is a type of streamlined divorce. But summary dissolutions aren’t available to everyone. In some states such as California, summary dissolution is only available to couples ending marriages or domestic partnerships if they haven’t been together long, have no children together, and there are no major debts or assets to distribute.

Petition. This is the document one spouse files with the court to begin the divorce process. Sometimes this paperwork may be called a complaint or pleading. Once the petition is filed, it must be formally delivered or served to the other spouse. This is accomplished by delivering a formal document called a summons of dissolution following the procedures required by the court.

Default. Once a divorce pleading is filed by one spouse, the other must respond. If they don’t answer the complaint, then the divorce is granted by default. Even though the terms may seem similar, a default judgment granting a divorce is not the same as an uncontested divorce.

And that brings us to point of this article; What exactly do the terms contested and uncontested divorce mean?

 


 

DIVORCE FACTS: According to the CDC, each year there are approximately 2.2 million marriages and 1 million divorces.

 


What’s the difference between a contested and uncontested divorce?

 

When someone contests a divorce, they aren’t arguing that the divorce can’t happen. The argument, or contesting, relates to one or more issues that have to be resolved before the divorce can become final. If both parties can agree on all the major issues surrounding the dissolution, then the divorce can proceed as uncontested. However, when a court has to make those decisions, then you have a contested divorce.

What types of issues must a divorcing couple resolve? Children and money top the list.

During a marriage, a couple may acquire an assortment of assets and obligations. When that couple decides to divorce, all their acquisitions and assets have to be split, the spouse who sacrificed his or her career will expect to be compensated, and provisions will have to be made for the couple’s children.

One spouse may have a pension or other retirement savings. The couple may have agreed that one spouse will forego professional gains in order to care for any and all of the above or for the other spouse. Sometimes only one spouse has a life insurance policy or is able to acquire employer-sponsored health insurance for the family.  They may also have children. Who will have custody, which parent will be responsible for support or other costs, and how visitation will be managed must all be resolved. For a divorce to be uncontested, the couple will need to demonstrate to the court that every issue has been worked out.

The benefits of an uncontested divorce.

Coming to an agreement about how to divide, assign, share everything and care for and compensate everyone can be a complicated process.

Couples who work out these details between themselves, often with the help of their lawyers, can file an uncontested divorce.

Instead of investing time and money fighting over assets, debt and support issues in court, spouses prepare joint paperwork demonstrating that the issues have been resolved. Families with children may still be required to participate in hearings and evaluations, but an uncontested petition should reduce the total time spent in court.

Because they tend to be less complicated and take less time to resolve, uncontested divorces are sometimes called simple divorces.
What happens if the couple can’t reach an agreement? Then the divorce becomes contested.

When is a contested divorce necessary?

If there are issues that no amount of negotiation can resolve, one or both spouses will file motions with the court asking the judge to issue a ruling.

Sometimes a couple can’t agree on the value of an asset and each side will call upon an expert to testify on his or her behalf. Maybe the parties can’t agree on which school the children should attend or how much money should be set aside for college. Or, they may not be able to agree on one or both spouse’s contribution to the value of the family business.

Contested divorces can be expensive and time-consuming. In most cases, resorting to litigation will extend the time it takes for a divorce to be concluded. Additionally, a court hearing or trial may create unwanted publicity for spouses who value their privacy.

Unfortunately, sometimes a contested divorce is a necessity. If one spouse is attempting to undervalue assets or avoid obligations, then the court is the place to turn for help. A contested divorce allows each spouse to call witnesses and investigate the details of their marital assets.

 

Real Estate Law Blog

It’s easy to feel overwhelmed by the myriad details of a real estate transaction. Between the lenders, escrow, appraisals, inspections, insurance, and disclosures — keeping it all straight is a monumental task. Add to that any number of complex legal issues that may arise, and suddenly things can get out of hand.

Because the potential for legal dispute can be high during these transactions, whether you’re an owner, buyer or seller it’s important to be aware of the key players and some of their most important duties and responsibilities.

For example, most people choose to hire a real estate broker to represent their interests and help them navigate this complicated process. California Civil Code establishes certain duties, rules, and standards for real estate brokers and agents and it is important to fully understand the rights afforded you by those codes. For more detailed information about a Real Estate broker’s specific duties to their clients, click here.

As the seller of any property, you also have certain responsibilities to the potential buyer. Among those is the duty to disclose and the delivery of a “Transfer Disclosure Statement”. This is a very important step in the process, in which the seller is obligated to tell the buyer of any known defects or facts that may impact the value of the property. For a more detailed outline of the seller’s disclosure duties click here.

Real estate transactions are not only complicated, but they are also often emotionally stressful as well. The experienced real estate attorneys at Herrig & Vogt can help you through any phase of the process and be your advocate if any dispute arises.

Do I Really Need Uninsured Motorist Coverage?

According to the Insurance Research Council (IRC), an average of one in every seven drivers in the United States is currently on the road without insurance. What does this mean for you? If you get in an accident with one of these uninsured drivers, your wallet can take a serious hit.

While frustrating to think about people who drive without insurance, it should also cause you to think about how you can protect yourself and your family. One of the best ways to do this is by purchasing uninsured motorist coverage.

What is uninsured motorist coverage?

Uninsured motorist coverage can seem like an unnecessary life expense, until the moment you desperately need it, that is. Picture this: you get in an accident with another car. The driver of that car caused the accident and does not have insurance. Therefore, there is no insurance money to pay for your injuries, vehicle damage, and potential lost wages. You are then forced to pay your own bills out of pocket.

Uninsured motorist coverage helps you pay for these bills so you personally don’t have to. Depending on the limit you choose for your coverage, you may not have to touch your wallet once during the entire process.

Uninsured motorist coverage can be purchased for both bodily injury and property damage. Many times, the bodily injury portion will also cover other passengers in your car who were injured, as well. Property damage is especially helpful when your car sustains significant damage.

The limits for uninsured motorist coverage usually range from $20,000 to $1 million. When selecting your limit, it is important to consider the worth of your car, your current medical insurance, and if your employer will compensate for disability leave.

Getting in a car accident can create physical and emotional pain, but preparing for the unexpected can help offset some of the trauma. If you do get in an accident, our firm wants to help. We have over 20 years of personal injury experience and a reputation for delivering real results.